Legally Speaking – with Bob Mionske

Attorney Bob Mionske handles sports-related legal issues. Mionske invitesreaders to submit legal questions faced by cyclists and other endurance athletesto info@bicyclelaw.com. Hewill answer a cross-section of questions each Thursday here on VeloNews.com.The information provided in this column is for general informational purposes only and does not constitute formal legal advice (see notice below).

ContractsHello Bob,As a pro cyclist for the past eight years I have signed several different types of “riders contracts” and have always been a little confused by them.They always seem to protect the interests of the company running the team, and lack protection for the rider.

Do you have any advice for professional riders who may be signing contacts? What types of clauses or wording should there be in the contract to protect and insure the rider is treated and paid properly? Eddy Gragus Fort Collins, CO

Hi Eddy,Understanding the rider’s agreement and relying on it to enforce their rights has always been a problem for professional endurance athletes. Commonly, the athlete will take whatever is given to him and sign it. It is not because he is ignorant, but because there are 10 guys standing behind him ready to sign, if he doesn’t. Most teams are fair about how they draft the team contracts and much of the language is boiler- plate (standardized).

One exception is the seemingly universal inclusion of a “first right of refusal” clause, which allows the team to keep the rider if the team chooses to match other offers. This can limit a rider’s freedom to move to another team while offering the athlete nothing in exchange.

Often, an athlete will sign an agreement without as much as reading anything but the compensation and number of years that the agreement runs. As long as everything goes smoothly, it never becomes an issue. However, when payment is not made, or the athlete is terminated, the language of the contract becomes of paramount importance, as it will likely determine the outcome of any disagreement.

It all too common for an athlete to become interested in the contract language and its meaning only after there is a problem. At this point, the athlete has expressed his consent to be bound by all terms of the agreement.

A rider’s agreement is a contract, which means it is a legally enforceable agreement between the rider and the team. The core of the agreement is a set of mutual promises (consideration). The promises made by the parties define rights and obligations of the parties. In the case of a rider’s agreement, the rider promises to provide the service of racing for the team and the team in exchange promises to pay the rider for this service as well as providing equipment and travel and other expenses.

This seems very simple, but the agreement will is broken down into many clauses which when construed on their own may mean one thing, but when interpreted in the context of the entire agreement may mean something different. Additionally, literal translation of a contract provision may be inaccurate, as enforcement will depend on statutory and common law as well as public policy.

What does all this mean? The language in an agreement may not mean what you think it means. How do you protect yourself? I recommend finding an attorney to go over the contract with you before you sign it. If you cannot find someone to provide this service for free, you can hire an attorney for one hour to review and explain the agreement with you. Teams are often open to constructive and fair changes. If you have considerable bargaining power, you may be able to significantly change the language of the agreement.

Some general areas you should understand and be comfortable with include your obligations are as the athlete, the compensation to be paid, the length of the agreement, whether it has a right of first refusal, the termination clause, the drug testing policy, the bonus schedule and listed remedies. The agreement may integrate and refer to the respective national governing body as well as the international governing body and you should be familiar with its constitution, by-laws and regulations. Additionally, you should look to see which state’s law controls the agreement and where a lawsuit may be filed.

Lastly and perhaps most importantly, you should understand with whom you are entering an agreement. It is often not the sponsor of the team, but instead some independent management entity. How is this entity organized? Who are its owners, officers or directors? How long have they been around and what is their reputation in the sport? Understanding with whom you are bargaining may be the most important consideration when entering into contract.

By the way, I love getting a question for a former U.S. pro champion! Long time no see, Eddy. I still tell the story about that time you and I almost went to fists while warming up for an early morning stage and you almost crashed into some poor guy pumping up his tire. He must have thought (known?!) we were crazy. Seems pretty funny now. — Bob

The lunatic fringeHi Bob;My wife and I were riding our tandem when a motorist who, after veiled threats and car “body language” intentionally hit us. He seemed to be trying to “teach us a lesson”. The responding police officer discouraged us from pursuing the case against him for vehicular assault suggesting it would be difficult to prove. The officer informed us that he would be charged with “hit and run” because he fled the scene of an accident.

We don’t want to do anything to jeopardize our position to be compensated for our damages. Furthermore, we do not want to do anything that would imply that it was an accident and not intentional. The insurance company is calling and we are quite upset about this. We want this maniac brought to justice to make the roads safer for all cyclists.T.A. North Dakota

Dear T.A.,Well, did you learn your lesson? Did you become sedentary? Do you watch TV all day and drive everywhere in a big gas-guzzler? No? Good!

These guys are everywhere and I would bet everyone reading this column has been hit, nearly hit or at least threatened by a motorist. Still, when you consider the number of vehicles we encounter, there are a lot of considerate drivers out there, too.

I don’t know if you and your wife were injured or if your bike survived, but I don’t think the driver’s insurance will be paying anything to you for your damages. Auto insurance policies cover drivers for their negligence and the resulting damage caused to another party. However, in your case the driver acted intentionally and intentional behavior is excluded from coverage.

If you think about it, it makes sense. If it were not so, we could buy insurance to cover us for our poor behavior knowing any damage we intentionally cause will be paid by our insurance company. This would hardly work to deter maniacs from misbehaving and in fact might actually increase violence in society, which is why, as a matter of public policy; one cannot insure intentionally tortuous behavior.

Of course, if the driver intentionally hit you with his vehicle he committed a criminal act that is punishable at law. The various states have different statutes that cover this crime. Some rely on general assault statutes and more and more states have enacted statutes that speak directly to assaulting cyclists. Either way, it is the responsibility of the police department to charge and the district attorney’s office to prosecute a crime like this.

You can pursue the driver personally in civil court for your damages on your own or with the assistance of an attorney. Unfortunately, in almost every case I have encountered the bad driver is “judgment proof”, meaning that even if you win the trial and the jury awards you money, there is no money to get because the guy is broke. Maybe that’s why he acts like he has nothing to lose-he really doesn’t.

There are a few possibilities that may allow for compensation in the case that the bad driver is judgment proof. If he is an employee and working at the time he intentionally hit you, you may be able to pursue his employer’s insurance. But, you will only be successful if the employer knew or should have known that this guy was likely to act like a maniac. In other words, you have to show that the hiring was negligent. This is a difficult standard to prove-as it should be. If the employer had no reason to know the guy was likely to attack someone while in the course of employment, why should the employer be held liable for the employee’s actions?

Another possibility to collect your damages is if your state has a victim compensation law on the books. In this case, if the driver is convicted, he will have to pay retribution to you as part of his sentence. One last possible source of compensation is with a “civil compromise.” In a few jurisdictions, after the district attorney files charges, you as the victim can drop the charges against the bad driver in exchange for payment from him to you, thus a “compromise” has been made.-Bob

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 National Championship Road Race.After retiring from racing in 1993 he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property etc).If you have a cycling related legal question please send it to info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer on VeloNews.com. General bicycle accident advice can be found at www.bicyclelaw.com.Important Notice: The information provided in the “Legally speaking” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.